When determining the tariff element of a discretionery sentence of detention passed on a young person pursuant to section 53(2) of the Children and Young Persons Act 1933 the approach adopted should be the same as that in cases of murder under section 53(1) and, accordingly, it was no longer permissible to treat such young persons in the same way as adult offenders.

The Divisional Court allowed the applicant's application for judicial review of the tariff element of her sentence set by the Home Secretary.

In 1991, on the day after her 17th birthday, the applicant pleaded guilty to manslaughter on the grounds of diminished responsibility. At the time of the killing the applicant was aged 161/2.

She was sentenced to detention for life under section 53(2) of the Children and Young Person's Act 1933.

In his report to the Home Secretary the judge included a recommendation that the applicant should serve a minimum term of 10 years to meet the requirements of retribution and deterrence. The Lord Chief Justice, Lord Lane, suggested a nine- to ten-year minimum.

The case fell to be dealt with under the transitional provisions of the Criminal Justice Act 1991. The Home Secretary certified under paragraph 9 of Schedule 12 to the Act that section 34 of the Act should apply and that the relevant part of the applicant's sentence (the tariff) was 9 years.

Upon the applicant's claim that such a tariff was excessive, the Secretary of State referred the case back to the Lord Chief Justice. The then Lord Chief Justice, Lord Taylor of Gosforth, advised the Home Secretary that the tariff period should be reduced to seven years. The Home Secretary accepted that advice and reduced the tariff period accordingly. The applicant challenged that decision by way of judicial review.

Edward Fitzgerald QC and Phillippa Kaufman (Graysons, Sheffield) for the applicant; Hugo Keith (Treasury Solicitor) for the Home Secretary.

Lord Justice Simon Brown said that it had been submitted that the question of the appropriate tariff element in the applicant's sentence had been approached on an erroneous legal basis. In particular the requirement, it being a section 53(2) case, that regard be had to the applicant's welfare, had not been recognised. That consideration had only recently been highlighted by the decision of the House of Lords in R v Secretary of State for the Home Department, ex p Venables and ex p Thompson (Law Report, 18 June 1997).

In fixing a tariff under section 34 of the 1991 Act the judge had to decide first of all what determinate sentence he would have passed in the case if the need to protect the public and the potential danger of the offender had not required him to impose a life sentence. He then had to decide on such proportion of that determinate sentence as fell between a half and two-thirds of it.

The case of ex p Venables and ex p Thompson was itself a section 53(1) case, but was nevertheless one of great importance when it came to fixing tariffs for juveniles sentenced to detention for life under section 53(2). The majority of the House of Lords in that case had rejected the Home Secretary's view that the approach to juveniles should be same as to adults. In the case of young persons, the court should set the minimum tariff.

The court had decided in R v Carr [1996] 1 Cr App R (S) 191, another discretionary life sentence case under section 53(2), that half rather than two-thirds of the appropriate determinate sentence should be taken in arriving at the specified period under section 34. Following the House of Lords' decision, that should now generally be regarded as the correct approach in section 53(2) cases.

From all that it seemed inescapably to follow that the seven-year tariff period could not stand. In all the circumstances, the appropriate tariff could not properly exceed the six years which the applicant had now already been detained.

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